Ohio State Bar Ass'n v. Mayer

• Decision Date: 28 June 1978
• Docket Number: No. 78-1,78-1
• Citation: 8 O.O.3d 434,377 N.E.2d 770,54 Ohio St.2d 431
• Parties: , 8 O.O.3d 434 The OHIO STATE BAR ASSOCIATION, Appellee, v. MAYER, Appellant. J. D.
• Court: Ohio Supreme Court

Page 431

54 Ohio St.2d 431

377 N.E.2d 770, 8 O.O.3d 434

The OHIO STATE BAR ASSOCIATION, Appellee, v. MAYER, Appellant.

J. D. No. 78-1.

Supreme Court of Ohio.

June 28, 1978.

Relator-appellee, Ohio State Bar Association, filed a complaint with the Board of Commissioners on Grievances and Discipline of the Supreme Court of Ohio pursuant to Rule VI of the Supreme Court Rules for the Government of the Bar of Ohio, seeking the retirement, removal or suspension from office of respondent-appellant, Judge James J. Mayer.

The first two paragraphs of the complaint state:

"1. Relator alleges that cause exists to remove Respondent from the office of Judge of the Court of Common Pleas of Richland County, Ohio for the reason Respondent engaged in * * * conduct * * * prejudicial to the administration of justice and for the reason that Respondent engaged in * * * conduct * * * which would bring the judicial office which he holds into disrepute.

"2. Relator alleges that cause exists to remove Respondent from the office of Judge of the Court of Common Pleas of Richland County, Ohio for the reason that Respondent is suffering from a physical disability and from a mental disability * * *."

After investigation in compliance with Gov.R. VI and R.C. 2701.11, the board reported to the Supreme Court its finding that " * * * there is substantial credible evidence in support of the misconduct allegations as set forth in paragraph one of the complaint * * *." Thereafter, the Supreme Court, pursuant to Gov.R. VI and R.C. 2701.11 appointed a five-judge commission to determine the question of retirement, removal or suspension of appellant.

The commission of judges conducted a hearing in the matter and ordered that appellant " * * * be retired for disability as a Judge of the Court of Common Pleas of Richland County, Ohio with the right to any emoluments, benefits and compensation allowed by law."

Appellant appealed the order of the commission to this court and moved for a stay of the order of the commission pending disposition of the appeal. The motion to stay was granted and the cause is now before the court for a determination of the question whether the order of the commission should be affirmed, reversed or modified.

John R. Welch, Albert L. Bell, Columbus, Harlan S. Hertz, Cleveland, and Eugene Balk, Toledo, for appellee.

Vorys, Sater, Seymour & Pease, Russell P. Herrold, Jr., Larry R. Thompson, Columbus, and James J. Mayer, Mansfield, for appellant.

PER CURIAM.

Appellant's first proposition of law asserts that the evidence does not support the finding and order of the commission that he should be retired for disability.

In his brief, appellant admits that the "medical evidence in this case is clear and uncontroverted." The commission, in its Findings and Order summarized that evidence as follows:

"The evidence established, and the respondent in his brief candidly admits, that beginning in 1961 respondent experienced numerous health problems. In 1961 respondent contracted viral encephalitis, African sleeping sickness. Prior to 1973 he experienced increasing problems of sleeplessness and depression. He used alcoholic beverages to excess and in October of 1973 engaged in a public brawl with the manager of a Lima restaurant. Thereafter he was admitted to the University Hospital in Columbus where he was diagnosed as being a manic depressive.

"Lithium carbonate was prescribed for respondent. The proper dosage was determined to be one which would maintain a blood level of Lithium at .7%. Respondent was released from University Hospital on November 15, 1973. In October 1974 respondent was advised that he had massive cancer of the large intestine. Thereafter all except the last foot of that organ was removed.

"Carcinoma of the liver was also found. Respondent was released in November 1974. Thereafter, he suffered rectal and urinary incontinence, diarrhea and severe vomiting. As a result of these afflictions, respondent could not or did not maintain the required .7% Lithium level.

"On May 11, 1975, respondent entered the Cleveland Clinic to undergo surgery for the removal of a portion of his liver affected by cancer. Following his release he took a variety of medication. This produced several side effects, including incontinence. Respondent's Lithium level, because of this and also a failure to take the proper dosage, was not maintained at the proper level. Respondent again returned to the Cleveland Clinic for treatment relative to his Lithium level, diarrhea, vomiting, asthmatic and prostate problems.

"The medical evidence is undisputed that surgery has probably arrested the carcinoma of the intestine and that the respondent has lived beyond the life expectancy of persons who have had surgery involving carcinoma of the liver. Further the respondent offered probative evidence that his manic depressive mental condition is controlled through the maintenance of a .7% level of Lithium Carbonate in his blood."

Appellant refers to the testimony of two psychiatrists to the effect that appellant's condition of manic depression is presently controlled by medication; he contends that " * * * the finding of the Commission that Respondent now suffers from such disability which presently prevents the proper discharge of the duties of his office is clearly erroneous."

Section 7 of Gov.R. VI, reads:

"Mental disability shall mean the condition defined in R.C. 5122.01(A) which presently prevents the proper discharge of the Judge's duties.

"Physical disability shall mean the impairment of the faculties of a Judge, which has prevented the proper discharge of his judicial duties for more than six months. Failure to be present in Court or to perform usual judicial functions for six months or more shall raise a presumption of physical disability.

"The Commission shall make such determination of disability based upon the testimony adduced before it. Expert medical testimony may be received by the Commission, and it may name medical experts to examine the respondent, with his consent."

R.C. 2701.12(B), provides:

"Grounds for retirement of a judge from office for disability exist when he has a permanent physical or mental disability which prevents the proper discharge of the duties of his office."

Appellant argues that: "Since all the medical evidence is to the effect that Respondent does not suffer from any present disability which now prevents his performance of his job, and since all the evidence shows that he now is able to and actually now is properly performing his duties, the Commission's Findings and Order are not supported by any let alone substantial clear and convincing evidence * * *."

In its Findings and Order, the commission stated:

"When respondent's Lithium level is not maintained, his history, as adduced by the evidence, establishes by clear and convincing evidence that he enters into the manic or hypo manic phase of manic depression, suffers from delusions, and has paranoid symptoms. Respondent contends that since January 1976 he is properly, adequately and fully controlled and no concern should be felt for his proper handling of his judicial duties.

"A majority of the Commission regretfully does not agree.

"Evidence was submitted supporting by clear and convincing evidence the allegations contained in the complaint. We find therefore that respondent * * * engaged in acts which violated Canon 1, Canon 2A of the Code of Judicial Conduct and Canons 4 and 34 of the Canons of Judicial Ethics. He has engaged in such acts as resulted in a substantial loss of public respect for his judicial office, brought his judicial office into disrepute and has engaged in conduct prejudicial to the administration of justice."

In support of the foregoing conclusions, the commission referred to evidence showing that " * * * respondent in letters, in a brief which he prepared, duplicated and disseminated 25 copies, in conversations and at public meetings referred to a fellow judge as a liar, a cruel sadist, as the Godfather, as part of the Gilligan Mafia, a.k.a. the Dirty Dozen, that the Prosecuting Attorney of the county belonged to the Mafia and was incompetent * * *."

The provisions of the Code of Judicial Conduct and Canons of Judicial Ethics cited by the commission read as follows:

"Canon 1. A Judge Should Uphold the Integrity and Independence of the Judiciary.

"An independent and honorable judiciary is indispensable to justice in our society. A judge should participate in establishing, maintaining, and enforcing, and should himself observe, high standards of conduct so that the integrity and independence of the judiciary may be preserved. The provisions of this Code should be construed and applied to further that objective.

"Canon 2 A. A judge should respect and comply with the law and should conduct himself at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary."

"Canon 4. Avoidance of Impropriety.

"A judge's official conduct should be free from impropriety and the appearance of impropriety; he should avoid infractions of law; and his personal behavior, not only upon the Bench and in the performance of judicial duties, but also in his every day life, should be beyond reproach."

"Canon 34. A Summary of Judicial Obligation.

"In every particular his conduct should be above reproach. He should be conscientious,...